Price v. State

749 So. 2d 166, 1999 Miss. App. LEXIS 432, 1999 WL 432563
CourtCourt of Appeals of Mississippi
DecidedJune 29, 1999
DocketNo. 98-KA-00183-COA
StatusPublished
Cited by1 cases

This text of 749 So. 2d 166 (Price v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. State, 749 So. 2d 166, 1999 Miss. App. LEXIS 432, 1999 WL 432563 (Mich. Ct. App. 1999).

Opinion

SOUTHWICK, P.J.,

for the Court:

¶ 1. Roderick Price was convicted of rape, sexual battery, and burglary by a Washington County Circuit Court jury. On appeal Price alleges that the trial court allowed the State to ask leading questions of the victim. Under these facts we do not find this to be reversible error. We affirm.

FACTS

¶2. Roderick Price was arrested by a Greenville police officer during the early morning hours of February 6, 1997. An officer who responded to a report of a burglary in progress was directed to a specific apartment, from which he soon saw a man exiting with a hammer in one hand and a hat in the other. The officer identified himself and told the man to lie on the ground. The suspect fled but was caught after a short chase. Price was the man that the officer caught.

¶3. Subsequent investigation indicated that more had occurred that night than two burglaries. The apartment from which the suspect had left just before being arrested was occupied by an elderly woman who showed signs of having been sexually assaulted as well as having suffered injuries to her mouth. Ultimately, charges were brought against Price for two counts of burglary, one count of rape, and one count of sexual battery. He was convicted on all counts.

DISCUSSION

Issue: The State’s asking leading questions of the victim

¶ 4. The fact that the State asked leading questions is not contested. Rather, the State argues that under the circumstances present in this case, leading questions of the victim were permissible.

¶ 5. The trial judge allowed the questioning under Rule 611(c) of the Mississip[167]*167pi Rules of Evidence and its comment. The rule states in part that “Heading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” M.R.E 611(c). The comment to this rule elaborates. Leading questions might be appropriate in cases where children are testifying, cases “with the witness whose recollection is exhausted and with the witness who has communication difficulties.” M.R.E. 611(c) cmt.

¶ 6. Meaningful communication difficulties may result from a variety of causes that include embarrassment or shame. Regarding leading questions dining a child’s testimony, our supreme court approvingly quoted a federal decision that stated “[t]he trial court’s ruling deserves deference because the court was in the best position to evaluate the emotional condition of the child witness and his hesitancy to testify.” Ivy v. State, 522 So.2d 740, 742 (Miss.1988), quoting United States v. Nabors, 762 F.2d 642, 650-651 (8th Cir. 1985). While the supreme court in referring to emotional condition and hesitancy to testify mentioned that its “holding [was] consistent with pre-rules law that the trial judge has broad discretion in passing on the form of questions asked minors,” there is no reason to limit the point to testimony by children. Those at the opposite extreme in age may need similar solicitude. The supreme court well before the Rules of Evidence were adopted made just that point in holding that “latitude is allowed to the trial court in the matter of leading questions to a witness” who was 86 years old and partially deaf. Bruce v. State, 169 Miss. 355, 152 So. 490, 491 (1934).

¶ 7. The record reveals that the victim was reluctant to discuss in open court the sexual attack she had suffered. Her difficulty in testifying about these facts was evident almost from the moment the prosecution broached the subject on direct examination.

Q. Okay. And when the man asked you for your money and you said it was in the bank, what did he do then?

A. I hate to tell what he did.

Q. I know, I know this is hard. What., what did you use to sleep in?

A. I sleep in a gown and things.
Q. Okay, keep your voice up for me. Okay, look — just look at me; okay?

* * *

Q. Okay. And when., when the man asked for your — After the man asked for your money, did he do anything?

A. Yes, ma'am.
Q. Okay. And that’s the part that’s kind of hard to say, isn’t it?
A. Sho’ is. I hate to do that.
Q. Okay.
A. She had — she told them what he had done because I was ashamed to tell her.
Q. You were ashamed to tell?
A. I sho’ was.
Q. Okay, well you know you don’t have anything to be ashamed about; is that what -
A. I’m ashamed to do that — say that though.
Q. Okay, I know it’s hard for you.

¶ 8. The victim subsequently denied that anything happened after her assailant choked her and broke her teeth.

Q. Okay. And did he do anything else to you after he choked you and broke your teeth?

A. He didn’t do no thing before no Police come.
A. Right.

Q. I’m sorry, I didn’t mean to interrupt you. The part that is so hard to say, did he do something to your private part? [168]*168MS. WILSON: Your honor? [What may-have been the start of an objection was not pursued.]

A. No, sho’ didn’t.

¶ 9. The victim denied being taken to the hospital. She again denied it even when the State specifically mentioned the Delta Regional Medical Center. The State asked a third time about her going to the hospital and at this point she remembered being taken to the “Delta Medical Center.” Her testimony regarding how her clothing became torn was also somewhat contradictory.

Q. Okay. How about your nightgown; did anything happen to your nightgown?
A. I didn’t fool with them. He didn’t fool with it.
Q. Okay, how about your underpants; did anything happen to them?
A. Nothing but what I had on -
Q. Okay, what happened -
A. —sleeping in, that’s what he tore up. That’s all he tore up in there.

Q. Okay, what., what did he tear up? When you said what you were sleeping in got torn up, what did he tear up?

A. Nothing else, just had that hammer talking about he’d kill me, but he didn’t do it.

¶ 10. Several sentences later, the defense counsel objected to the leading of the witness. This was nine pages into the direct examination of the victim. An apparent start of an earlier objection was dropped, possibly because the State switched topics. There had been considerable leading of the witness prior to the first articulated objection. This objection was untimely as to the previous testimony resulting from leading questions, but we do not find the entire issue waived.

¶ 11.

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749 So. 2d 166, 1999 Miss. App. LEXIS 432, 1999 WL 432563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-state-missctapp-1999.